IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROGER A. FOX, SR., 

 Plaintiff, 

vs. Civil Action 2:12-cv-551 

 Judge Sargus 

 Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

I. Background 

This is an action instituted under the provisions of 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s application for supplemental security 

income. This matter is now before the Court on Plaintiff’s Statement 

of Errors (“Statement of Errors”), Doc. No. 19, and Defendant’s

Memorandum in Opposition (“Commissioner’s Response”), Doc. No. 24. 

Plaintiff has not filed a reply. 

 Plaintiff Roger A Fox, Sr., filed his application for benefits on 

October 30, 2008, alleging that he has been disabled since October 25, 

2006. PAGEID 178. The application was denied initially and upon 

reconsideration, and plaintiff requested a de novo hearing before an 

administrative law judge. 

 An administrative hearing was held on April 12, 2011, at which 

plaintiff, represented by counsel, appeared and testified, as did Carl 

Hartung, who testified as a vocational expert. PAGEID 77-78. In a 

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decision dated May 13, 2011, the administrative law judge concluded 

that plaintiff was not disabled during the period from October 30, 

2008 through the date of the administrative decision. PAGEID 71. 

That decision became the final decision of the Commissioner of Social 

Security when the Appeals Council declined review on May 30, 2012. 

PAGEID 49. 

 Plaintiff was 48 years of age on the date of the administrative 

law judge’s decision. See PAGEID 71, 178. He has at least a high 

school education, is able to communicate in English, and has past 

relevant work as a tractor-trailer driver and truck driver. PAGEID 

69. Plaintiff has not engaged in substantial gainful activity since 

October 30, 2008, the application date. PAGEID 61. 

II. Medical Evidence1

Plaintiff treated with Robert J. Masone, M.D., a pain specialist, 

from June 2005 through at least December 2010 for back pain that 

radiated to his neck and legs. See PAGEID 299-346, 422-458, 472-484. 

Dr. Masone treated plaintiff with medication for that entire period. 

See id. Dr. Masone also administered lumbar facet injections, PAGEID 

345 (July 2005), 346 (June 2005), radio frequency ablation, PAGEID 345 

(July 2005), 344 (August 2005), 302 (July 2008), sacroiliac joint 

injections and arthrogram, PAGEID 327-28 (June 2006), 421 (November 

2008), 420 (December 2008), 413 (March 2009), 412 (April 2009), 410 

 

1

 Plaintiff’s Statement of Errors challenges the administrative law judge’s 

alleged failure to follow the treating physician rule when evaluating Dr. 

Masone’s opinions. Plaintiff also challenges the administrative law judge’s 

reliance on two non-examining physicians to support the physical residual 

functional capacity assessment without having plaintiff examined. The Court 

will therefore limit its discussion to those issues. 

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(May 2009), lumbar transforaminal epidural steroid injections, PAGEID

336-38 (November 2005), 334 (December 2005), 325-26 (July 2006), 320 

(January 2007), 319 (March 2007), injections in the greater occipital 

nerve, PAGEID 418 (January 2009), 416 (February 2009), 406 (July 

2009), 404 (August 2009), 476-78 (September 2010), cervical epidural 

steroid injections, PAGEID 400-01 (September 2009), 398 (October 

2009), cervical facet injections, PAGEID 395 (November 2009), cervical 

radio frequency ablation, PAGEID 392 (December 2009), 391 (January 

2010), and medial branch blocks, PAGEID 304-05 (May 2008), 394 

(November 2009). Dr. Masone also performed a four-level provocative 

discography on September 27, 2005, which documented lumbosacral 

degenerative disk disease. PAGEID 339-42. 

Dr. Masone’s clinical findings on October 25, 2005 included a 

negative straight leg raise, although slightly equivocal on the left, 

and mild trouble transitioning from sitting to standing. Dr. Masone 

diagnosed lumbar spondylosis with degeneration and osteophytic growth 

of the lower lumbar levels. PAGEID 335, 341. He recommended 

percutaneous intradiscal electrothermal annuloplasty (“IDET”) and 

epidural steroid injections. PAGEID 339. 

In February 2006, plaintiff was “deemed not to be a surgical 

candidate” and was referred to physical therapy. PAGEID 330. Dr. 

Masone noted on May 30, 2006 that physical therapy had not alleviated 

plaintiff’s pain. PAGEID 329. Plaintiff declined further physical 

therapy in November 2006 and again in May 2009. PAGEID 322, 410. 

 Clinical findings in July 2006 included a positive straight leg 

raise bilaterally that was slightly worse on the left and “[m]uch 

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trouble transitioning from sitting to standing.” PAGEID 324. 

Plaintiff was fitted for a back brace, but in September and November 

2006 he reported little benefit. PAGEID 322-24. 

 In treatment notes dated April 3, 2007, Dr. Masone noted that 

plaintiff “has failed to get better with conservative 

treatments . . . and is now a candidate for an IDET procedure.” 

PAGEID 318. Dr. Masone performed that IDET procedure at L4-L5 on May 

15, 2007. PAGEID 316-17. Plaintiff reported no benefit in June 2007. 

In July 2007, plaintiff was described as “medically stable”. PAGEID 

314-15. 

 In treatment notes dated August 25, 2008, Dr. Masone noted that 

plaintiff “has failed all conservative therapy including time, 

medication management, injection therapy, and physical therapy.” 

PAGEID 301. Dr. Masone recommended a sacroiliac joint injection. Id. 

Injections in the greater occipital nerve were administered in 

January, July, and August 2009. Dr. Masone’s treatment notes continued 

to indicate, however, that plaintiff “has failed all conservative 

therapy including time, medication management, and chiropractic care.” 

PAGEID 404, 406, 416. See also PAGEID 476 (“[Plaintiff] failed 

conservative therapy including time, medication management, 

chiropractic care, and he is now opioid dependent.”) 

 W. Jerry McCloud, M.D., completed a physical residual functional 

capacity (“RFC”) assessment on February 6, 2009. PAGEID 366-74. 

According to Dr. McCloud, plaintiff could lift and/or carry 20 pounds 

occasionally and 10 pounds frequently, could stand and/or walk for a 

total of about six hours in an 8-hour workday, could sit for a total 

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of about six hours in an 8-hour workday, and could push and/or pull; 

he would be limited in his upper extremities for a period of six 

months. PAGEID 367, 369. Plaintiff could never climb ladders, ropes, 

or scaffolds, but could occasionally stoop, kneel, crouch, and crawl. 

PAGEID 368. Dr. McCloud further opined that plaintiff should avoid 

concentrated exposure to fumes, odors, dusts, gases, and poor 

ventilation. PAGEID 370. 

 Gary Hinzman, M.D., reviewed the record and, on April 9, 2009, 

affirmed Dr. McCloud’s assessment. PAGEID 375-76. 

II. Administrative Decision 

 The administrative law judge found that plaintiff’s severe 

impairments consist of “degenerative disc disease of the lumbar spine 

at the L4-5 and L5-S1 levels, migraine headaches, a dysthymic disorder 

and a personality disorder.” PAGEID 61. The administrative law judge 

also found that plaintiff’s impairments neither meet nor equal a 

listed impairment and leave plaintiff with the RFC to perform 

a full range of light work as defined in 20 CFR 416.967(b). 

Specifically, the claimant can lift and carry 10 pounds 

frequently and 20 pounds occasionally. He can sit, stand 

and walk about six hours in an eight-hour workday. He can 

never climb ladders, ropes or scaffolding and only 

occasionally stoop, kneel, crouch or crawl. He can only 

occasionally reach overhead with the left upper extremity. 

However, he can use his hands and fingers for fine and 

gross manipulation and has no difficulties feeling. 

Mentally, he can perform unskilled work with no fast-paced 

work activities or strict time-limited tasks. He can 

perform superficial contact with co-workers but cannot have 

contact with the general public. He is limited to stable 

work environments with minimal changes in routine. 

PAGEID 61-64. In making these findings, the administrative law judge 

considered the treatment of plaintiff’s back pain: 

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The claimant has had only the most conservative and nonaggressive treatment for his low back spine [sic]. He has 

been administered epidural steroid injections, Lidoderm 

patches and radiofrequency ablations to his lumbar spine 

and wore a back brace for some time. However, he has not 

required a TENS unit, been prescribed any type of permanent 

back brace, cane, crutches, a walker, a wheelchair, splints 

and has not been recommended for any surgery (although he 

testified at the hearing that a surgery consult was 

performed). He has been prescribed narcotic pain relievers 

and anti-inflammatory medications which are controlling 

most of his pain. There is no evidence that the claimant 

experiences bowel or bladder dysfunction. There is no 

evidence that the claimant experiences true radicular type 

pain such as an EMG study and no evidence that any doctor 

has requested that such a test be performed. There is no 

evidence of any physical examinations which show evidence 

of severely diminished range of motion of the upper or 

lower extremities, no severe guarding noted and no evidence 

of positive straight leg raising. There is no evidence of 

severely diminished deep tendon reflexes, no muscle atrophy 

and only mild diffuse tenderness observed during physical 

examinations. There is no evidence of motor or sensory 

abnormalities. There has been only minimal subjective 

evidence of difficulties toe to heel walking. He has been 

treated by a pain specialist who continues to prescribe 

narcotics and injections. In conclusion, the claimant’s 

treatment during a claimed period of disability tends to 

suggest that the claimant’s symptomatology was sufficiently 

controlled with medications and injunctions alone. 

Therefore, the claimant’ cervical and lumbar impairments do 

not prevent the claimant from performing light work 

activities. 

PAGEID 68. 

The administrative law judge relied on the testimony of the 

vocational expert to find that plaintiff is able to perform a 

significant number of jobs that exist in the national economy, 

including such light unskilled jobs as housekeeping cleaner, 

dishwasher, and inspector. PAGEID 70. Accordingly, the 

administrative law judge concluded that plaintiff has not been 

disabled within the meaning of the Social Security Act since October 

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30, 2008, the date plaintiff’s application for benefits was filed. 

PAGEID 71. 

III. Discussion 

 Pursuant to 42 U.S.C. § 405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is more than a scintilla of 

evidence but less than a preponderance; it is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion. 

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y 

of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This 

Court does not try the case de novo, nor does it resolve conflicts in 

the evidence or questions of credibility. See Brainard v. Sec’y of 

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. 

Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this 

Court must examine the administrative record as a whole. Kirk, 667 

F.2d at 536. If the Commissioner's decision is supported by 

substantial evidence, it must be affirmed even if this Court would 

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 

1058, 1059 (6th Cir. 1983), and even if substantial evidence also 

supports the opposite conclusion. Longworth, 402 F.3d at 595. 

 Plaintiff argues that the administrative law judge erred in 

failing to accord controlling weight to the medical opinions of his 

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treating pain specialist, Dr. Masone. Statement of Errors, p. 1. 

“Medical opinions are statements from physicians and psychologists or 

other acceptable medical sources that reflect judgments about the 

nature and severity of your impairment(s), including your symptoms, 

diagnosis and prognosis, what you can still do despite impairment(s), 

and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2). 

An administrative law judge is required to evaluate every medical 

opinion, regardless of its source. 20 C.F.R. § 416.927(c). However, 

the opinion of a treating source must be given controlling weight if 

that opinion is “well-supported by medically acceptable clinical and 

laboratory diagnostic techniques” and is “not inconsistent with the 

other substantial evidence in [the] case record.” 20 C.F.R. § 

416.927(c)(2). Even if the opinion of a treating source is not 

entitled to controlling weight, an administrative law judge is 

nevertheless required to determine how much weight the opinion is 

entitled to by considering such factors as the length, nature and 

extent of the treatment relationship, the frequency of examination, 

the medical specialty of the treating physician, the extent to which 

the opinion is supported by the evidence, and the consistency of the 

opinion with the record as a whole. 20 C.F.R. § 416.927(c)(2)-(6); 

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); 

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). 

Moreover, an administrative law judge must provide “good reasons” for 

discounting the opinion of a treating source, i.e., reasons that are 

“‘sufficiently specific to make clear to any subsequent reviewers the 

weight the adjudicator gave to the treating source’s medical opinion 

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and the reasons for that weight.’” Rogers v. Comm’r of Soc. Sec., 486 

F.3d 234, 242 (6th Cir. 2007) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 

374188, at *5). 

In the case presently before the Court, plaintiff argues that the 

administrative law judge erred in failing to give controlling weight 

to Dr. Masone’s medical opinions. Statement of Errors, pp. 1, 7. 

Plaintiff specifically refers to Dr. Masone’s repeated comment that 

plaintiff “had failed conservative treatment” and to a May 7, 2010 

assessment of plaintiff’s RFC, in which Dr. Masone allegedly opined 

that plaintiff 

was employable only on a 4 hour per day basis in which he 

could stand/walk 1 hour at a time and 4 hours in a work 

day, or sit one hour at a time and 4 hours in a work day; 

he could lift carry up to 5 lbs frequently and 10 lbs 

occasionally. 

Id. at p. 3. The Commissioner takes the position that there was 

no “medical opinion” from Dr. Masone in the record before the 

administrative law judge. Commissioner’s Response, pp. 3-6. 

 Dr. Masone purportedly completed a physical capacities 

evaluation on May 7, 2010 and opined that plaintiff had physical 

limitations greater than those found by the administrative law 

judge in the latter’s assessment of plaintiff’s RFC. See 

Physical Capacities Evaluation, Doc. No. 13-1.2

 There is no 

evidence, however, that Dr. Masone’s May 2010 RFC assessment was 

available to the administrative law judge or, indeed, that it has 

ever been submitted to the Social Security Administration. 

 

2

 Upon plaintiff’s unopposed motion, Motion to Complete the Record, Doc. No. 

13, the Court permitted plaintiff to supplement the record to include this 

report. Order, Doc. No. 14. 

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Patrick J. Herbst, Chief, Court Case Preparation and Review 

Branch 3, Office of Appellate Operations, Office of Disability 

Adjudication and Review, Social Security Administration, 

certified that the “full and accurate transcript of the entire 

record of proceeding relating to this case” was included in the 

Certified Administrative Record filed by the Commissioner on 

August 28, 2012. First Certified Administrative Record, Doc. No. 

11, p. 1. Notably, Dr. Masone’s May 2010 opinion is not 

contained in the Certified Administrative Record and there is no 

indication that it was included in the exhibits admitted – with 

the approval of plaintiff’s counsel – at the administrative 

hearing. See PAGEID 80 (admitting exhibits 1F through 21F 

without objection). Plaintiff’s counsel stated - in unverified 

fashion - that Dr. Masone’s May 2010 opinion was “submitted to 

SSA on 6/7/10.” Motion to Complete the Record, p. 1. The 

photocopy of Dr. Masone’s May 2010 opinion provided by plaintiff 

to this Court reflects the notation “[s]ubmitted 6/7/10” and what 

appears to be handwritten initials – otherwise unidentified - at 

the bottom of the page. See Physical Capacities Evaluation, p. 

1. However, the unverified statement of plaintiff’s counsel and 

the unauthenticated photocopy of Dr. Masone’s purported 

assessment cannot serve to establish that the document was in 

fact properly submitted for consideration by the administrative 

law judge. 

It is true that plaintiff’s counsel referred to Dr. 

Masone’s opinion in his brief before the Appeals Council, see 

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PAGEID 251, and during his opening statement at the 

administrative hearing: 

Dr. Masone did this discogram on 9/27/05. At L5 S1, the 

pain was severely concordant, and at L4/5 it was very 

concordant. He’s tried a bunch of conservative injections, 

and there’s also been an IDET procedure done 5/15/07, none 

of which have produce [sic] any sustained relief. And I 

think that essentially as his is, at the time of Dr. 

Masone’s RFC on 5/7/10, he was pretty much the same going 

all the way back for the preceding five years. And that’s 

the basis for disability. 

PAGEID 80-81. Nevertheless, the Court cannot conclude that this 

passing reference was sufficient to put the administrative law 

judge on notice that plaintiff’s counsel was in possession of 

additional evidence that should have been, but was not, included 

in the record. 

 However, this Court agrees with plaintiff’s argument that 

the administrative law judge erred in his assessment of Dr. 

Masone’s repeated opinion that plaintiff “had failed conservative 

treatment.” Statement of Errors, p. 3. In April 2007, August 

2008, January 2009, July 2009, and August 2009, Dr. Masone noted 

that conservative therapy had not improved plaintiff’s condition. 

See PAGEID 318, 404, 406, 416. In August 2008, Dr. Masone 

commented that even injection therapy had not been successful. 

PAGEID 301. Dr. Masone’s statements in this regard qualify as 

“medical opinions” within the meaning of 20 C.F.R. § 

416.927(a)(2) because they “reflect judgments about the nature 

and severity of [plaintiff’s] impairment[s], including 

[plaintiff’s] symptoms, diagnosis and prognosis, . . .” However, 

the administrative law judge made no specific mention of Dr. 

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Masone’s opinion in this regard and provided no explanation for 

his apparently contrary finding that “the claimant’s treatment 

during a claimed period of disability tends to suggest that the 

claimant’s symptomatology was sufficiently controlled with 

medications and injections alone.” PAGEID 68. Under these 

circumstances, the Court concludes that the matter must be 

remanded for further consideration of the opinions of plaintiff’s 

treating pain specialist. 

 It is therefore RECOMMENDED that the decision of the 

Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) 

and that this action be REMANDED for further consideration of the 

opinion of Dr. Masone, plaintiff’s treating pain specialist. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

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See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 s/ Norah McCann King 

 Norah Mc

Cann King 

 United States Magistrate Judge 

June 18, 2013 

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